Today, the House Oversight and Government Reform Committee voted to proceed with contempt charges against Lois Lerner, the former Director of Exempt Organizations for Internal Revenue Service.
Nothing about the vote was unexpected. The Committee had announced that the vote would happen today (not a surprise) and had released a draft of the contempt charges. The vote passed along party lines (also not a surprise).
The resolution will now go to the full House for approval. If it passes, the next stop is the U.S. Attorney’s Office – a pretty tall order. The U.S. Attorney’s Office hasn’t pursued criminal contempt charges since 1983. In that case, a contempt citation was filed against the then head of the Environmental Protection Agency (EPA), Anne Gorsuch Buford, who had been appointed to serve under President Reagan. In that case, Buford had invoked executive privilege during an investigation into the EPA over the $1.6 billion toxic waste Superfund. Buford had initially said she’d rather go to jail than turn over documents which had been requested by Congress: she didn’t go to jail and the documents were eventually turned over.
That doesn’t mean that Congress hasn’t pushed for other contempt charges. Most notably, the House made history in 2012 when they approved contempt measures against Attorney General Eric Holder for his role in the Fast and Furious scandal. Like Buford, Holder had also refused to turn over documents for a Congressional investigation; in both cases, the White House had announced that the subpoenaed documents were protected by executive privilege.
The Lerner matter is not likely to be graced with the same privilege protections. It also may not matter. The House faces significant challenges in successfully prosecuting Lerner, prompting Lerner’s attorney, William Taylor III, to remark, “There is not a court in this country that will hold Ms. Lerner in contempt of Congress.”
He may be right. No American has been successfully prosecuted for invoking Fifth Amendment rights before Congress. A string of cases was pursued from 1951 to 1968, most of which involved the House Un-American Activities Committee. Of those, not one that focused on testimony – as in Lerner’s case – was successfully prosecuted.
These cases are generally not successful because the Fifth Amendment is jealously guarded by the courts. When the Lerner matter broke last year, I spoke with Hayes Hunt, an attorney in the Philadelphia office of Cozen O’Connor, about privilege and the Fifth Amendment (you can read his article on Fifth Amendment Fundamentals here). I specifically asked Hunt about waiver of privilege since Chairman Issa’s argument has largely hinged on Lerner’s opening statement in her first appearance before the Committee. Hunt indicated that the Fifth Amendment isn’t generally waived simply by making an opening statement. That’s true, he says, even if the statement is under oath (as it was in this case) since a statement isn’t usually considered testimony because it’s not in response to a direct question.
Even as attorneys argue over whether Lerner’s statement is actually testimony and whether that statement constituted a waiver of her Fifth Amendment privilege and whether she’s entitled to one at all in this case, Americans may not have the stomach for prosecution. That will matter to the House in the run-up to an election. While taxpayers are largely disappointed and suspicious of how IRS targeted tax-exempt applications, they appear to both weary of the investigation and leery of the motives of those leading the charges.
What all of this comes down to is whether Lerner broke any laws. Not whether she’s a bad manager or a terrible person or anything else you want to say about her. Those may be personality flaws – and they may be grounds for dismissal (which didn’t happen, she resigned instead) but they aren’t crimes. If she did break the law, she deserves to be prosecuted. But so far, there’s no proof that happened, just a lot of supposition.
That hasn’t stopped the House Ways and Means Committee from compiling a list of laws that Lerner might have broken. Committee Chair Dave Camp (R-MI) announced that the Committee was sending a criminal referral letter to Attorney General Eric Holder asking for additional investigation to determine whether Lerner violated criminal statutes. Chairman Camp said about the decision:
This investigation has uncovered serious, unprecedented actions taken by Lois Lerner that deprived conservative groups of their rights under the Constitution. Almost a year ago we learned that the IRS subjected certain groups to extra scrutiny because of their political beliefs. At the time, Lois Lerner shamefully attempted to blame the mistreatment on low-level employees in Cincinnati. The investigation to date has demonstrated that the targeting did not happen until IRS headquarters in D.C. intervened. Today’s action highlights specific wrongdoing for the Department of Justice to pursue. DOJ has a responsibility to act, and Lois Lerner must be held accountable. It is also important that the American people know what really occurred at the IRS, so this powerful agency cannot target American taxpayers ever again.
The Committee indicated that it believes Lerner that may have violated one or more criminal statutes. If convicted of those crimes (for which, to be clear, she has not been charged), Lerner could face up to 11 years in prison.
You can read the letter here (downloads as a pdf). Be prepared to sit awhile: together with exhibits, the letter is 97 pages long.
For the record, it had previously been announced that no criminal charges were expected to be filed.